Post-Conviction Relief for Immigrants

There are several immigration contexts in which it is important to avoid a misdemeanor conviction:  (a) the Legalization Program, (b) the Special Agriculture Workers' Legalization Program, (c) the Family Unity Program, and (d) Temporary Protected Status.  For example, three misdemeanor convictions, or one felony conviction, will disqualify an immigrant from obtaining Lawful Permanent Resident status through the Legalization Program.[450]  If the applicant has three misdemeanor convictions, and one is reduced to an infraction on a motion to reduce, then the applicant has only two misdemeanor convictions, and would be eligible for this immigration benefit, since the law is clear that it is the final or most recent sentence that governs for immigration purposes.[451]

            The Legalization Program for Special Agricultural Workers likewise disqualifies an applicant who has suffered three misdemeanor convictions, or one felony conviction.[452]

            An applicant is barred from the Family Unity Program, which grants temporary status and work authorization to relatives of legalization recipients while awaiting adjustment of status to Lawful Permanent Resident, by having three misdemeanor convictions or one felony conviction.[453]

            Similarly, Temporary Protected Status may be granted only to those who do not have two misdemeanor convictions, or one felony conviction.[454]

            Also, certain offenses might be held to involve moral turpitude or to be particularly serious crimes to bar asylum or withholding as a felony conviction but not as a misdemeanor conviction.[455]

[450] INA § 245A(a)(4)(B), 8 U.S.C. § 1255(a)(4)(B).  See California Criminal Law and Immigration, § 11.1.

[451] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Matter of Martin 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961)(new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles).

[452] This requirement was added in the middle of the SAW program, by legislation effective December 18, 1989.  Immigration Nursing Relief Act of 1989, Pub. L. No. 101-238, 103 Stat. 2099, § 4.  See Interpreter Releases, January 1, 1990, p. 5.

[453] Immigration Act of 1990, § 301.

[454] INA § 244A, 8 U.S.C. § 1254a, added by Immigration Act of 1990, § 302(b)(1).  See California Criminal Law and Immigration, § 11.7.

[455] See, e.g., false imprisonment, driving under the influence, hit and run, vehicular manslaughter, in California Criminal Law and Immigration, Annotations following Chapter 12.